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Cell phone radiation, bikini baristas, and an onslaught of horribles.

Thanks, man! A big thanks! But if you want to support the authors, buy it from us instead. If you want to write a review of the book, please contact us. Thanks, guys! April 12 Added new layout to the 16 type pages Pages in Beta. February 27 Added video: If Disney did the Prequels February 14 Added video: Is the high ground a Mary Sue? Luke vs. Email us about bugs, tweaks, and errors.

Email us. Kindle not required. Site still in Beta. It should be fixed now. Email us if you notice errors or have feedback. Want more people added to the site? Want influence on who is added next? Become a patron here. Go here to support them with a dollar. November 19 Added J. Test in Beta. September 4 Moved John F. Far from retarding the abolition of slavery, the Revolution actually accelerated it. Its triumph gave a big boost to Enlightenment liberalism, which inspired the First Emancipation in the US the abolition of slavery in the North that became the first large-scale emancipation of slaves in modern history , and boosted antislavery movements in Europe, as well.

Had the Revolution been defeated, Enlightenment liberal ideology would have been dealt a setback in Britain and France, too. That would have set back antislavery movements there, as well. It iss no accident that many antislavery leaders in Europe were also sympathizers with the American Revolution. The Marquis de Lafayette was just one of the most famous examples of European liberals who actively backed both.

The West Indian slaveowner lobby in Parliament was strong enough to block abolition of slavery until Had Britain also been saddled with the much larger proslavery lobby of the American South, it would have taken far longer. Especially when you combine the impact of the larger slavery lobby with the force of point 2 above.

A defeat for the American Revolution would have set back other liberal causes too, not just antislavery. That includes, among other things, universal suffrage, freedom of speech, religious toleration, and increased rights for women. Each of these reforms and others, too was given new impetus by American Revolution , which inspired European liberals to imitate them.

Ideally, people should evaluate political ideas purely on the basis of logic and evidence. But, in reality, many are often attracted to a seeming winner. Military victory often increases the attractiveness of an ideology, and defeat reduces it. Think of how fascism's appeal plummeted after the defeat of Hitler and Mussolini, and communism's appeal increased after the Bolshevik triumph in the Russian Civil War and Stalin's successes in World War II. The American Revolution similarly g ave a boost to Enlightenment liberalism around the world.

A British victory would have had the opposite effect. The impact would have been felt on both sides of the Atlantic. The relatively better treatment of natives in Canada owed more to the lower number of settlers and the somewhat less desirable nature of the lands in question, than to any intrinsic superiority of British policy in that regard. The horrendous treatment of Australian aborigines underscores that the British could be just as brutal towards native populations as Americans often were.

The sad truth is that neither society has much to boast about when it comes to this issue. Britain's generally benevolent treatment of Canada in the 19th century was in large part a product of lessons the British learned from the American Revolution that oppression would be likely to lead to revolt.

Moreover, they knew that a dissatisfied Canada was ripe for conquest by the US which did in fact try to seize Canada twice. I see that as a negative, not a positive. Still, I can understand why many on the left take the opposite view. But it is also worth noting that Canada and the US actually score very close to each other on standard measures of economic liberty and government spending as a percentage of GDP In recent years, Canada sometimes scores a bit higher in the sense of being slightly more free market.

And while separation of powers is not the ideal regime for all nations, I think it is often superior to parliamentary government, for reasons I summarized here. Points above along with other benefits of the Revolution I do not have time and space for here strongly suggest that the good accomplished was worth the admittedly terrible loss of life. I should also acknowledge Jeff Stein's response to Dylan Matthews on Vox , which makes a number of good points related to those above.

Some conservatives occasionally make the argument that the failure of the American Revolution would have forestalled the French Revolution and the resulting massive bloodshed of the Napoleonic wars. We can also take this further and suggest that preventing the French Revolution might have also blocked the later rise of revolutionary socialism and the horrific atrocities of communism. R obert Sobel's classic alternate history novel For Want of a Nail develops a scenario somewhat like this. It is difficult to evaluate such wide-ranging claims.

But it seems to me unlikely that the absence of the French Revolution would have prevented a war comparable to the Napoleonic Wars from arising. The period from to saw numerous bloody wars between Britain and France, including three that resulted in massive pan-European conflicts the War of the Grand Alliance, the War of the Spanish Succession, and the Seven Years War. Given this history, it is highly likely another such conflict would have occurred even absent the French Revolution.

It is notable that the Napoleonic Wars dragged on for many years even after France abandoned most of the ideological pretensions of the Revolution. As for the rise of socialism and communism, it likely would have occurred anyway, as a byproduct of the Industrial Revolution and its associated intellectual and social changes. Indeed, a world with no American and French Revolutions might well have been one where socialism and reactionary conservatism and nationalism were the only major ideological alternatives of the late 19th and early 20th centuries.

But, admittedly, we cannot totally exclude the possibility of a world dominated by more moderate forms of conservatism emerging from this scenario. In that event, modern society would have fallen short of the heights achievement reached by liberal democracy, but it might also have avoided the depths of communist and Nazi totalitarianism.

Since we are talking about a really big counterfactual, it is entirely possible that some low-probability event would have happened to upset one or more of my conjectures above. But, overall, I believe the evidence suggests that the American Revolution did a lot more good than harm. The revolutionaries were far from perfect, and often failed to live up to their own principles. But their triumph nonetheless did much to advance the cause of freedom—not just in America, but around the world. Some historians argue that counterfactual reasoning of this sort is worthless. How can we possibly evaluate events that didn't happen?

It is hard enough to understand those that did. Among other things, the claim that Event X caused Event Y implies that Y would not have happened in the absence of X or at least would not have happened on the same scale or extent. To assess such causal claims, it is important to consider what might have transpired had X been prevented. I consider the value of counterfactual history in greater detail in this article , which assesses a much more modest counterfactual scenario than the failure of the American Revolution. From Commonwealth v.

Smarr , a nonprecedential decision handed down yesterday by a Pennsylvania appellate court:. Christopher Joseph Smarr appeals from the judgment of sentence entered following his convictions for first-degree murder, robbery, and related charges…. The Commonwealth brought charges against Smarr based on allegations that… he shot and killed the victim, Brandon Gray.

The shooting occurred during a robbery, as part of a "turf war" between rival drug dealers…. Smarr argues that the court erred in allowing [Janay] Brown [the sole eyewitness to the shooting] to testify while wearing a scarf over part of her face because this denied Smarr his right to face-to-face confrontation under the Confrontation Clauses of the federal and state constitutions.

Smarr argues that Brown's testimony was impermissible under the test announced in Maryland v. Craig , U. First, Brown testified she only wears the scarf on Fridays, when she attends religious services at the Jum'ah, and whenever she feels that she wants to; she did not testify her religion required her to wear the scarf while testifying, and it was therefore unnecessary to allow her to do so. Second, Smarr contends the reliability of Brown's testimony was not otherwise assured, as the jury were unable to clearly see Brown's facial expressions and thus fully assess her demeanor and credibility.

The points made are no less relevant this year. So, this year's July 4 post adapts much of the earlier material, with some new additions:. One of the striking differences between the American Revolution and most modern independence movements is that the former was not based on ethnic or nationalistic justifications. Nowhere does the Declaration state that Americans have a right to independence because they are a distinct racial, ethnic, or cultural group. They couldn't assert any such claim because the majority of the American population consisted of members of the same groups English and Scots as the majority of Britons, and spoke the same language.

Rather, the justification for American independence was the need to escape oppression by the British government — the "repeated injuries and usurpations" enumerated in the text — and to establish a government that would more fully protect the rights to "life, liberty, and the pursuit of happiness. Indeed, the Declaration indicates that secession or revolution is justified "whenever any Form of Government becomes destructive of these ends" [emphasis added].

The implication is that the case for independence is entirely distinct from any nationalistic or ethnic considerations. To be sure, the Declaration does refer to "one people" seeking "to dissolve the political bonds which have connected them with another. The Americans were not distinct, in that respect, from the people of Britain. The "people," in this case, is simply a group that voluntarily comes together to establish a new nation. As critics from to the present have delighted in pointing out, the revolutionaries often failed to live up to their own ideals.

But it would be a mistake to devalue the Revolution's significance for that reason. The Americans of fell far short of fully adhering to their professed principles. The Declaration's high-minded reference to the "consent of the governed" were in large part belied by the injustices many state governments inflicted on the substantial minority who did not consent to independence , but instead remained loyal to Britain.

Later generations of Americans have not fully lived up to the Declaration's universalist ideals either. Racial and ethnic oppression, xenophobic exclusion of and discrimination against immigrants, and other similar injustices have been all too common in our history. Several of the items included in Declaration's list of grievances against King George III could easily apply to the federal government today:.


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He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither,…. The same can be said of President Trump, who has waged a massive—and often brutally cruel — campaign against immigration , both legal and illegal. His administration also sought to strip numerous naturalized citizens of their status without providing even minimal due process.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance…. The federal government has a massive regulatory and law enforcement apparatus that regulates nearly every aspect of our lives—so much so that it is virtually impossible for ordinary citizens to avoid violating federal law at some point in their lives, or even to know all the laws and regulations they are subject to.

The Justice Department's asset forfeiture system empowers law enforcement agencies to literally "eat out [our] substance" even in many cases where the owner of the seized property has never been charged with any crime, much less convicted. The US government is currently waging multiple self-destructive trade wars against various nations around the world, including even close US allies. To add insult to injury, the Trump administration even plans to institute new tariffs on tea and fireworks.

The British government's tea protectionism was, of course, the proximate cause of the Boston Tea Party , which helped lead to the Revolution. Despite our many deviations from them, it would be a mistake to assume that the Declaration's ideals were toothless. Even in their own time, the principles underlying the Declaration helped inspire the First Emancipation — the abolition of slavery in the northern states, which came about in the decades immediately following the Revolution.

This was the first large-scale emancipation of slaves in modern history, and it helped ensure that the new nation would eventually have a majority of free states, which in turn helped ensure abolition in the South, as well. The Declaration did not abolish slavery, and its high-minded words were, for decades, undercut by the hypocrisy of Jefferson and all too many others. But the ideals of the Declaration played an important role in slavery's eventual abolition.

As Abraham Lincoln famously put it , the Declaration established important aspirational principles, even if they could not be immediately realized:. I think the authors of that notable instrument intended to include all men, but they did not mean to declare all men equal in all respects ….

They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, or yet, that they were about to confer it immediately upon them…. They meant simply to declare the right , so that the enforcement of it might follow as fast as circumstances should permit.

They meant to set up a standard maxim for free society which should be familiar to all: constantly looked to, constantly labored for, and even, though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence and augmenting the happiness and value of life to all people, of all colors, every where. The universalist ideals of the Declaration also helped establish a nation that provided freedom and opportunity to immigrants and refugees from all over the world.

Lincoln, who was a strong supporter of immigration , effectively conveyed this point, as well :. When [immigrants] look through that old Declaration of Independence, they find that those old men say that "We hold these truths to be self-evident, that all men are created equal"; and then they feel that that moral sentiment, taught in that day, evidences their relation to those men… and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh, of the men who wrote that Declaration; and so they are.

Much progress has been made since Lincoln's time, to say nothing of Jefferson's. But at this point in our history, we are still far from fully living up to the principles of the Declaration. Certainly not when our government abuses refugee children and even turns away escaped slaves on the specious ground that their forced labor somehow qualifies as supporting terrorism.

We must strive to do better, so that the principles of the Declaration can be more fully realized. The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate.

It also raises the question of how these fundamental rights are reconciled with the idea of "the consent of the governed," another idea for which the Declaration is famous. Later, the Declaration also assumed increasing importance in the struggle to abolish slavery. It became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists.

It was much relied upon by Abraham Lincoln. It had to be explained away by the Supreme Court in Dred Scott. And eventually it was repudiated by some defenders of slavery in the South because of its inconsistency with that institution. When reading the Declaration, it is worth keeping in mind two very important facts.

The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing "the People.

But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the sovereign himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known. So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence, the famous reference to "a long train of abuses and usurpations" and the list that follows the first two paragraphs.

In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights. In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People , I explain how the Declaration encapsulated the political theory that lead the Constitution some eleven years later. To appreciate all that is packed into the two paragraphs that comprise the preamble to the list of grievances, it is useful to break down the Declaration into some of its key claims.

This first sentence is often forgotten. It asserts that Americans as a whole and not as members of their respective colonies are a distinct "people. The Declaration is like the indictment of a criminal that states the basis of his criminality. But the ultimate judge of the rightness of their cause will be God, which is why the revolutionaries spoke of an "appeal to heaven"—an expression commonly found on revolutionary banners and flags. As British political theorist John Locke wrote: "The people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven.

Or perhaps the emphasis is on the word "respect," recognizing the obligation to provide the rest of the world with an explanation they can evaluate for themselves. The most famous line of the Declaration. On the one hand, this will become a great embarrassment to a people who permitted slavery. On the other hand, making public claims like this has consequences—that's why people make them publicly. To be held to account. This promise will provide the heart of the abolitionist case in the nineteenth century, which is why late defenders of slavery eventually came to reject the Declaration.

And it forms the basis for Martin Luther King's metaphor of the civil rights movement as a promissory note that a later generation has come to collect. Notice that the rights of "life," "liberty" and "the pursuit of happiness" are individual, not collective or group rights. They belong to "We the People"—each and every one. This is not to say that government may not create collective, positive rights; but only that the rights that the next sentence tells us are to be secured by government belong to us as individuals. What are "unalienable," or more commonly, "inalienable rights"?

Inalienable rights are those you cannot give up even if you want to and consent to do so, unlike other rights that you can agree to transfer or waive. Why the claim that they are inalienable rights? The Founders want to counter England's claim that, by accepting the colonial governance, the colonists had waived or alienated their rights. The Framers claimed that with inalienable rights, you always retain the ability to take back any right that has been given up.

A standard trilogy throughout this period was "life, liberty, and property. That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent. When drafting the Declaration in June of , Jefferson based his formulation on a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason at the end of May for Virginia's provincial convention. Here is how Mason's draft read:. THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Notice how George Mason's oft-repeated formulation combines the right of property with the pursuit of happiness. And, in his draft, not only do all persons have "certain. And these inherent individual natural rights, of which the people—whether acting collectively or as individuals—cannot divest their posterity, are therefore retained by them, which is helpful in understanding the Ninth Amendment's reference to the "rights…retained by the people.

Interestingly, Mason's draft was slightly altered by the Virginia Convention in Williamsburg on June 11, After an extensive debate, the officially adopted version read with the modifications in italics :. That all men are by nature equally free and independent, and have certain inherent rights , of which, when they enter into a state of society , they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

According to historian Pauline Meier, by changing "are born equally free" to "are by nature equally free," and "inherent natural rights" to "inherent rights," and then by adding "when they enter into a state of society," defenders of slavery in the Virginia convention could contend that slaves were not covered because they "had never entered Virginia's society, which was confined to whites.

Massachusetts, Pennsylvania, and Vermont adopted Mason's original references to "born equally free" and to "natural rights" into their declarations of rights while omitting the phrase "when they enter into a state of society. Here is Massachusetts' version:. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

Virginia slaveholders' concerns about Mason's formulation proved to be warranted. In , the Massachusetts Supreme Judicial Court relied upon this more radical language to invalidate slavery in that state. And its influence continued. In , it was incorporated into an influential circuit court opinion by Justice Bushrod Washington defining the "privileges and immunities" of citizens in the several states as "protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.

Justice Washington's opinion in Corfield to which we will return , with Mason's language at its core, was then repeatedly quoted by Republicans in the Thirty-Ninth Congress when they explained the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, which reads: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Another overlooked line, which is of greatest relevance to our discussion of the first underlying assumption of the Constitution: the assumption of natural rights. Here, even more clearly than in Mason's draft, the Declaration stipulates that the ultimate end or purpose of republican governments is "to secure these" preexisting natural rights that the previous sentence affirmed were the measure against which all government—whether of Great Britain or the United States—will be judged.

This language identifies what is perhaps the central underlying "republican" assumption of the Constitution: that governments are instituted to secure the preexisting natural rights that are retained by the people. In short, that first come rights and then comes government. Today, there is a tendency to focus entirely on the second half of this sentence, referencing "the consent of the governed," to the exclusion of the first part, which refers to securing our natural rights.

Then, by reading "the consent of the governed" as equivalent to "the will of the people," the second part of the sentence seems to support majoritarian rule by the people's "representatives. But read carefully, one sees that in this passage the Declaration speaks of "just powers," suggesting that only some powers are "justly" held by government, while others are beyond its proper authority.

And notice also that "the consent of the governed " assumes that the people do not themselves rule or govern, but are "governed" by those individual persons who make up the "governments" that "are instituted among men. The Declaration stipulates that those who govern the people are supposed "to secure" their preexisting rights, not impose the will of a majority of the people on the minority.

And, as the Virginia Declaration of Rights made explicit, these inalienable rights cannot be surrendered "by any compact. In modern political discourse, people tend to favor one of these concepts over the other—either preexistent natural rights or popular consent—which leads them to stress one part of this sentence in the Declaration over the other. The fact that rights can be uncertain and disputed leads some to emphasize the consent part of this sentence and the legitimacy of popularly enacted legislation. But the fact that there is never unanimous consent to any particular law, or even to the government itself, leads others to emphasize the rights part of this sentence and the legitimacy of judges protecting the "fundamental" or "human" rights of individuals and minorities.

If we take both parts of this sentence seriously, however, this apparent tension can be reconciled by distinguishing between a the ultimate end or purpose of legitimate governance and b how any particular government gains jurisdiction to rule. So, while the protection of natural rights or justice is the ultimate end of governance, particular governments only gain jurisdiction to achieve this end by the consent of those who are governed.

In other words, the "consent of the governed" tells us which government gets to undertake the mission of "securing" the natural rights that are retained by the people. After all, justifying the independence of Americans from the British government was the whole purpose of the Declaration of Independence.

People have the right to take back power from the government. Restates the end—human safety and happiness—and connects the principles and forms of government as means to this end. Affirms at least two propositions: On the one hand, long-established government should not be changed for just any reason. The mere fact that rights are violated is not enough to justify revolution. All governments on earth will sometimes violate rights. But things have to become very bad before anyone is going to organize a resistance.

Therefore, the very existence of this Declaration is evidence that things are very bad indeed. Revolution is justified only if there "is a long train of abuses and usurpations, pursuing invariably the same Object"—evidence of what amounts to an actual criminal conspiracy by the government against the rights of the people. The opposite of "light and transient causes," that is, the more ordinary violations of rights by government. To prove this, let Facts be submitted to a candid world. What follows is a bill of indictment.

Several of these items end up in the Bill of Rights. Others are addressed by the form of the government established—first by the Articles of Confederation, and ultimately by the Constitution. The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition: "First comes rights, then comes government.

This is powerful stuff. At the Founding, these ideas were considered so true as to be self-evident. However, today the idea of natural rights is obscure and controversial. Oftentimes, when the idea comes up, it is deemed to be archaic. Moreover, the discussion by many of natural rights, as reflected in the Declaration's claim that such rights "are endowed by their Creator," leads many to characterize natural rights as religiously based rather than secular. On July 4th, , it officially adopted the American Theory of Government, which was publicly articulated in the Declaration of Independence.

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Jacob Sullum Reason reports:. Donald Hilton. Nor was that the only puzzling aspect of Prause's complaint, which framed what are essentially defamation claims as sexual harassment…. He argues that her complaint against him is an attempt to discredit an intellectual opponent by making baseless charges—a tactic he says she has used against other critics of pornography. Furthermore, Hilton denies claiming that Prause has appeared in pornographic films or that she is implicated in child molestation.

There's more in Sullum's post. Arizona Republic Maria Polletta reports:. Arizona Gov. Umbehr And while that case involved traditional payment-for-service contracting, the logic of the case would apply to financial incentives such as those involved in the Nike case.

Of course, the government can generally choose to terminate a contract assuming the terms of the contract allow that or not to renew it for a wide range of reasons. But it sounds like the Nike matter likewise involves a decision to cancel an already arranged plan; and just as the First Amendment bar on the government firing employees based on their First Amendment activity also applies to refusals to hire Rutan v.

Republican Party of Illinois , so the First Amendment bar on terminating contracts based on First Amendment activity applies to refusals to contract. For more, see my post about why it's unconstitutional for the City of Los Angeles to require that would-be contractors disclose their ties to the NRA.

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I can't speak to whether this is a sound interpretation of Michigan law, and it might be that courts in other states might reach a different result under their own states' laws. John Tanton—"an ophthalmologist and conservationist," according to the University, and "a figure widely regarded as the grandfather of the anti-immigration movements," according to plaintiff—donated his personal writings, correspondence, and research collectively, "the Tanton papers" to the Bentley Library's collection.

His donation included 25 boxes of papers, but boxes were to remain closed for 25 years from the date of accession, i. Last week, in Mitchell v. Wisconsin , the Supreme Court added a new chapter to the Fourth Amendment rules on testing for blood alcohol content in the enforcement of the drunk driving laws.

When the government tries to prove drunk driving in court, it's very helpful for the prosecution to have a reliable test of the driver's blood alcohol content. This means that when the government has probable cause to believe that a person has been driving drunk, officers will want to test the person's blood alcohol level through either a breathalyzer test or a blood draw. The Fourth Amendment question is, when can the government order either test without a warrant? It will do so in six parts. I know, that's too many parts! But there's a lot of important context here, and all four readers interested in this topic won't mind.

So six parts it is. The first part explains why this is a particularly difficult question for Fourth Amendment law. The second part summarizes the holdings of the recent cases on this issue before Mitchell. The third part explains the facts and rationale of Mitchell.

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The fourth part looks closely at Mitchell 's surprisingly complicated rule. The fifth part offers some normative reactions to the case. The sixth part concludes with some thoughts on rules and standards in Fourth Amendment law. A warning before I start. This is a pretty complex and somewhat arcane area of Fourth Amendment law, so it's possible I may make some mistakes. If you think I erred, please let me know. I'll make corrections as soon as I can. It's helpful at the outset to appreciate why the rules for blood and breath tests in drunk driving cases might be pretty difficult for the Justices.

On one hand, it's clear that both blood and breath tests should be a search. Both force the retrieval of evidence inside the body and expose that evidence to the government. Both are searches of a person. That part is easy. On the other hand, identifying when those searches are constitutionally "reasonable" is much harder. Searches typically are reasonable if the government has a valid search warrant or an exception to the warrant requirement applies. Everyone agrees that the government can get a warrant to conduct a breath test or a blood draw.

The important and contested question has been when such tests can be allowed without a warrant under one of the warrant exceptions. That's a hard problem because the facts of blood and breath draws resonate with several different warrant exceptions without being obvious fits in any of them. Consider a few possibilities:. All of these arguments are at least facially plausible. But none of them are perfect fits. And to make matters more complicated, there are different kinds of tests that could be administered.

There are preliminary field breath tests that aren't very reliable. There are breath tests on more reliable machines back at the station house. And there are blood draws typically done by medical professionals. It's not easy to figure out what the rules should be. Now on to the some cases. There are three precedents that you need to know to understand the new decision in Mitchell.

California , from way back in The Court held that the exigent circumstances exception applied "on the facts of the present record" to permit a physician to draw blood at a police officer's direction from a motorist who crashed his car into a tree and was being treated for his injuries at the time of his arrest for drunk driving.

Given the time that had elapsed after the crash before the driver's arrest, and the reasonable way that the blood draw was performed, the blood draw was reasonable under the exigent circumstances exception. The second case is Missouri v. The Court divided, with a majority opinion in some areas and only a plurality in others. The majority rejected a per se approach, holding that the mere fact of a drunk driving arrest did not necessarily create exigent circumstances for a blood draw. But the majority's opinion was unusually narrow. It only ruled that the exigent circumstances exception approach of Schmerber had to be applied on a case-by-case basis.

It did not answer what the cases were where the exception applied. Next up was Birchfield v. Birchfield held that when a person is arrested for drunk driving, a breath test is permitted under the search incident to arrest exception but that a blood test is not permitted under that exception. A breath test is much less of a big deal than a blood test, Birchfield reasoned.

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It's less invasive and less risky. The former is reasonable on a drunk driving arrest while the latter is not. So when the government arrests someone for drunk driving, they can always conduct a breath test but need special circumstances such as in Schmerber to conduct a blood test. This meant, the Court explained, that refusal to submit to a breath test on arrest could be prosecuted while refusal to submit to a blood test ordinarily could not be. Birchfield also held that a person could not be held to have impliedly consented to a search if refusal has criminal penalties.

Earlier caselaw had indicated that person could be subject to civil penalties for refusal to go along with implied consent statutes. For example, if the state wants to take your driver's license away for refusing to consent, it's permissible for them to do so on the ground that you had impliedly consented to a search and then refused to go along with your promise. But this same rationale did not permit criminal penalties for refusal, the Court held.

Exactly why there should be such a limit wasn't particularly well-explained. But the Court's rule on this was clear: "[I]mplied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply" are fine, but "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.

That brings us to the new case, Mitchell v. Mitchell deals with the following question: What can the police do if a person is strongly suspected of drunk driving is unconscious and therefore can't give a breath test and can't be asked if they will submit to a blood test? In particular, if the police want to perform a blood draw on the unconscious person to get a blood sample for testing its alcohol content, is that a reasonable search without a warrant or is a warrant needed? Here are the facts of the case. Mitchell was reported driving drunk, and he was soon found totally trashed wandering around a lake on foot near his car.

An officer gave Mitchell a "preliminary breath test," a relatively unreliable field test, which showed he was very drunk. But that didn't work out so well.


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Mitchell was so out of it when they reached the police station that the officer couldn't do the breath test and instead drove Mitchell to the hospital. Mitchell had passed out by the time they reached the hospital and had to be wheeled in. It turns out that Wisconsin has an implied-consent law that says an unconscious person is presumed not to have withdrawn consent. But in theory, the law suggests, even an unconscious person should be given a chance to overcome that presumption.

Mitchell, being unconscious and all, did not respond. And by not responding, his legally presumed consent was still deemed to exist. Gotta love the law, eh? The officer asked the hospital personnel to take a blood draw, and they did. A subsequent analysis showed, unsurprisingly, that Mitchell was blitzed. Yes, the Court ruled. According to Justice Alito, an officer can "almost always" direct hospital personnel to conduct a blood test on an unconscious person when the officer has probable cause to arrest the motorist for drunk driving and no reliable breath test has been given.

Perhaps the most surprising part of Mitchell is the warrant exception the Court applied. But the plurality opinion, as well as Justice Thomas's fifth-vote concurrence, relied instead on the exigent circumstances exception. Specifically, the plurality saw the driver's unconsciousness as a special situation akin to the traffic accident that had allowed the blood draw in Schmerber. Although McNeely held that the "constant dissipation of BAC evidence alone does not create an exigency, Schmerber shows that it does so when combined with other pressing needs.

Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful. Why does unconsciousness matter so much? When a driver was unconscious, a reliable breath test wasn't possible. Only a blood draw could be conducted. And getting accurate alcohol numbers was extremely important to prove a person had driven intoxicated, greatly facilitating the enforcement of drunk driving laws that seek to avoid tens of thousands of deaths every year.

Further, for the police, coming across an unconscious driver was likely to trigger a sequence of events to help the driver that was inconsistent with getting a warrant. The police were likely to be rushing the driver to the hospital and perhaps saving lives at a possible crash scene, during which the officer was unlikely to be able to take time out to go get a search warrant.

In the emergency scenarios created by unconscious drivers," Justice Alito wrote, "forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs. Amidst that process, a blood draw for evidence wasn't that much of an additional invasion. Richardson :. Plaintiffs are an individual attorney and his law firm, who previously represented defendant Halana Richardson in a personal injury action she brought following a rear-end collision that occurred on September 17, That trial concluded on January 23, with a jury verdict against Richardson.

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